TaxTMI 
TaxTMI 
2018 (2) TMI 1154
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....y of Power of Attorney, based on which transfer of possession and development have taken place much earlier and when the order of the Tribunal is contrary to facts and law ? (ii) Whether the Appellate Tribunal is right in reversing the order of the Commissioner (Appeals) based on incorrect appreciation of facts and law and so its order is perverse in nature ? 3. The Appellants are husband and wife. Briefly stated, for the Assessment Year 2002-03 the Appellant of Appeal No. 5 of 2012 returned Income of Rs. 1,34,516/- on 2nd July, 2002 whereas the Appellant of Appeal No. 6 of 2012 returned income of Rs. 92,698/-. The returns were processed under Section 143 (1) of the Act. The Assessing Officer (for short "A.O.") having in possession of the information entertained a belief that the Appellants (assessees) who are the owners of the property bearing Survey No. 186/6 situated at Nayakwada, Calangute, Bardez, Goa measuring 14,875 sq. mtrs. have entered into agreement on 30th April, 2001 with M/s. Braganza Construction, a partnership firm, for development and sale of property and flats for a consideration of Rs. 80 lacs and allotment of three flats on ownership basis having total bui....
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....e adoption of fair market value, as decided in the Appeals by the Tribunal, we have been informed that separate Appeals have been filed by both the Appellants before this Court. In the circumstances, that question is not involved and is not decided in these Appeals. 6. We have heard the learned counsel for the parties. Vishal 7. Shri R. Srinivasan, learned counsel for the Appellants has argued that the Tribunal has failed to consider that two Power of Attorneys entered between the Petitioner and the Developer M/s. Braganza Construction by which the possession was also handed over by the assessees to the Developer in addition to the power to develop the property. He also argued that in terms of the said Power of Attorneys, the Developer carried out part of the development of the property and the Appellants have received substantial amount out of the agreed sum of Rs. 80 lacs. In the circumstances, according to him the Tribunal had committed grave error in holding that the transfer within the meaning of Section 2(47)(v) of the Act had taken place only in the Assessment Year 2002-03 when the agreement dated 30th April, 2001 was executed. He submits that the reliance of the A.O. as ....
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....tement that the possession has not been given and the recital in the agreement dated 30th April, 2001 about giving of the possession on the basis of this agreement, learned counsel for the Revenue submits that the impugned order passed by the Tribunal is based on correct appreciation of the evidence and needs no interference. 9. For deciding the controversy involved in the matter, we feel it proper to extract the relevant portions of the Power of Attorneys dated 14th December, 1993 and 29th April, 1994. The agreement dated 30th April, 2001 and the reply filed by the Appellants to the notice issued by the A.O under Section 148 of the Act are also need to be extracted. The relevant portion of the Power of Attorney dated 14th December, 1993 reads thus : "Know All Men By These Presents, that we, (1) Mr. Joao De Souza Proenca alias Joao Proenca, son of Antonio Proenca, landlord, of 65 years of age, residing at Calangute, Bardez, Goa and (2) Mrs. Maria Sara Proenca alias Sara Proenca wife of Joao Proenca of 57 years of age, housewife, residing at Calangute, Bardez, Goa do hereby nominate, constitute and appoint Mr. Mathew Braoanza, major of age, married, businessman residing at ....
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....nsfer of Property Act. The said section clearly provides that proposed buyer if he could be so called, should have fulfilled all the conditions including the payment. The said section 53A is applicable, if I am barred from repudiating the contract. In my case, I am not so barred and hence this condition is also not fulfilled. I continue to be the full owner of the property and consequently there is no transfer even under the liberalized definition of transfer under Section 2(47)(v). The question of assessing the capital Gains does not arise. The amount of Rs. 56.75 lacs received till today retains the character of originally debt owned by me. The factum of receipt mentioned in para 3 of your letter does not change the basic situation. Again it is not correct to day that, I have allowed to construct. I have not allowed, but directed Braganzas to proceed with the construction on my behalf. The reference is made to the decision of the Bombay High Court in the case of Dwarkadas Kapadia. The ratio of this judgment is not applicable. In fact the Hon'ble High Court has allowed the appeal in favour of the original holder of the land. This is not only on the basis of the date of transfe....
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.... reply to the notice in unequivocal term have stated that the Appellants have not given possession to the Developer but had given only access to him to enable to do certain jobs on their behalf. It has also been clearly stated in the reply that the Appellants continued to be full owner of the property and there is no transfer. 12. At this point of time, it is relevant to refer the Judgment of the Division Bench of this Court in the case of Chaturbhuj Dwarkadas Kapadia vs. Commissioner of Income Tax, (2003) 180 CTR 0107 on which reliance has been placed by Ms. Amira Razzaq, learned Counsel for the Revenue as also the judgment dated 20th November, 2017 passed by the Division Bench of this Court in the case of The Commissioner of Income Tax-111, Pune vs. Dr. Arvind S. Phake, (2003) 260 ITR 491. In the case of Chaturbhuj Kapadia (supra) it has been held as under: "Under Section 2(47)(v), any transaction involving allowing of possession to be taken over or retained in part performance of a contract of the nature referred to in Section 53A of the Transfer of Property Act would come within the ambit of Section 2(47)(v). That, in order to attract Section 53A, the following conditi....
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....ome Tax (2003) 260 ITR 491 (Bom). The Division Bench held that the date of contract is relevant provided the terms of the contract indicate passing off or transferring of complete control over the property in favour of the developer. The Division Bench laid down the test for determining the date which should be taken into account for Vishal determining the relevant accounting year in which the liability accrues. In the present case, the Appellate Tribunal has taken into consideration various clauses in the development agreement. Sub clause (d) of clause (3) of the agreement provides that after full payment of consideration, the construction shall be undertaken by the developer. Admittedly, on the date of execution of the development agreement, the entire consideration was not received by the respondent assessee. The physical possession of the property subject matter of development agreement was parted with by the respondent assessee on 1st March, 2008. It was held that on that day, complete control over the property was passed on to the developer. After having perused the various clauses in the agreement and the aforesaid factual aspects, the Tribunal has taken 1st March, 2008 as t....